Opinion
September 29, 1970
Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 24, 1970, which determined that claimant was ineligible for benefits effective July 28, 1969 on the ground that she was not available for employment and ineligible to accrue more than one effective day during each statutory week on the ground that she was willing to work only four days in each statutory week. Claimant, a dental assistant, was employed for five years by a dentist until June 30, 1969 when she was temporarily laid off while her employer was on vacation. During her employment she worked four days a week, Monday through Thursday, refusing to work Saturdays, late Fridays or religious holidays because of her religious beliefs. She was re-employed by her former employer on September 2, 1969, and resumed working for four days a week. On August 5, 1969 claimant completed an initial claim questionnaire and made no response to the question, "What are you doing to secure work?" An unsigned summary of interview dated August 12, 1969 contains a statement that "I haven't as yet been looking for work because I want to return to my employer." The board found that claimant's efforts to obtain employment during the period in issue were sparse; that the credible evidence establishes that claimant was awaiting recall by her former employer, and that her allegations that she would have taken a five day a week job are not to be taken seriously. "Whether a claimant's efforts to secure employment are sufficiently diligent to satisfy the statutory requirement of availability is a question of fact to be determined by the board and its determination, if rendered upon substantial evidence must be sustained". ( Matter of Bennett [ Catherwood], 33 A.D.2d 946, 947.) Substantial evidence supports the board's determination and the credibility of the testimony was within the exclusive province of the board. ( Matter of Witek [ Catherwood], 33 A.D.2d 949.) A claimant who limits himself to four days of employment per week cannot accrue more than one effective day in such week. ( Matter of Fisher [ Catherwood], 34 A.D.2d 869.) Decision affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.